Legal guidelines for work from home arrangements

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Employees who request to work from home do so for a variety of reasons, whether it is because they are parents of young or school-aged children, or because they may live some hours’ commute away from the city-based office and wish to have one or two days per week where they do not have to endure a long commute.

Under the Fair Work Act 2009, the right to request flexible working arrangements is an entitlement only for employees in certain circumstances, such as those who have the care of a child under school age, are a carer, are 55 years or older, are experiencing family or domestic violence or provide care or support to a member of their household or immediate family who requires care and support because of family or domestic violence. It is not a legal entitlement extended to the broader workforce.

Despite this, and perhaps due to the prevalence of “hot desking” in workplaces nowadays, many employers have instigated Work From Home policies which clearly set out expectations and boundaries for employees who wish to avail themselves of such an option. For employers, having clear policies and procedures around working from home is a must, particularly given employers will generally have the same exposure to liability from work-related accidents as they would if the employee was working in the company office.

Workers compensation claims

In working from home scenarios, the lack of boundaries between the person’s day to day home routine and their work duties can give rise to many questions from a workers compensation liability perspective. Does a workers compensation policy cover an employee who is injured whilst at home on their usual workday? What if they are on a lunchbreak or a bike ride in between performing their duties at home?

Over the past decade, these types of scenarios have formed the basis of many workers compensation claims that have been determined by state commissions and tribunals.

In Hargreaves and Telstra Corporation Limited [2011] AATA 417, a Telstra campaign manager had an arrangement whereby she worked two days from home and three days per week in Telstra's city office. While she was home working one day, she went to get some medication for a respiratory problem and fell down the stairs, injuring her left shoulder. Shortly afterwards, she had another fall and again injured her shoulder, this time requiring surgery.

When she made a workers compensation claim under the Cth Safety, Rehabilitation and Compensation Act 1988 Telstra denied liability for the injuries on the basis that the falls did not arise out of, or were not in the course of, her employment. The main issue before the Tribunal was whether her injuries arose out of, or in the course of, her employment with Telstra.

The evidence put forward in the case showed that on both occasions when she fell down the stairs she had been logged onto Telstra's computer system and had got up from her work station to go downstairs. On both occasions, coughing had caused her to lose her balance. On the first occasion, she was going downstairs to get cough mixture. On the second occasion, she was going downstairs to lock her front door after her son had left for school.

The Administrative Appeals Tribunal held that the employee’s injuries were compensable. In regards to the first fall, the Tribunal noted legal authority that liability may exist for injuries that occur while relieving necessities of nature, such as while on a morning tea or toilet break.

The Tribunal considered Ms Hargreaves' first fall as having occurred during a break, given she needed to get cough syrup to continue her work. A key factor in the second fall was that Telstra had instructed her to make sure her screen door was locked during the day when she was working from home, and she had been complying with this instruction when she left her workstation at about 8.40am to lock the screen door. The Tribunal accepted that Ms Hargreaves had been directed by her superiors to lock her screen door when working from home, and thus her injury was found to occur whilst in the process of carrying out a requirement for work.

In Van Wessam v Entertainment Outlet Pty Ltd [2010] NSWWCCPD 97, a worker was fatally injured when cycling on a roadway through a national park during a workday. His business had entered into a contract to be on-call over extended periods each week. The contract required him to follow up phone calls within 2 hours. As a physically active person, his bike rides were regular and it was common for him to take work calls during the rides.

A major issue in the proceedings was whether he was “in the course of employment” at the time he sustained his injuries to meet the criteria for “injury” in the NSW Workers Compensation Act 1987. In this case, the Commission accepted that the fact the worker regularly undertook work phone calls during his regular ride, although the employer attempted submissions that his employment was suspended whilst on a bike ride.

President Keating observed: “It may be seen from these facts that the worker’s employment essentially moved with him. It required him to be available to respond to referrals within a relatively short timeframe, even though he may, at the same time, be undertaking a dual purpose of some other domestic or recreational activity”.

Although the worker was found to be in the course of employment, ultimately it was the causation test of whether employment was a substantial contributing factor to the injury that led to the finding that his injuries were not compensable under the workers compensation legislation. President Keating then stated the following: “…the worker’s employment did not require him to be at any particular location at a particular time when he was working, and did not require him to work at places remote from his home. It afforded him a certain amount of freedom to work at times that were more flexible than traditional working arrangements.

It was this flexibility that attracted Mr Van Wessam to this kind of work and allowed him, as his wife said, to combine his work with other pursuits.”

In Ziebarth v Simon Blackwood (Workers’ Compensation Regulator) [2015] QIRC 121, the Industrial Relations Commission of Queensland found that a fleet service manager had injured his back in the course of employment when, rushing to answer his work phone at home, he had slipped and fallen.

The evidence considered by the Commission particularly centred on whether he had been encouraged and induced by his employer to hurry and answer his phone. The facts found by this commission included that he was required by his employment contract to be on call from time to time and had been given a mobile phone for this purpose. His employer had previously chastised him for failing to answer his phone and it was for this reason that he had rushed out of the shower when the phone rang and slipped on wet tiles.

Recommendations

Employers have a duty of care to ensure the health and safety of their workers, regardless of whether they work in a factory, office or home. It is recommended that the following be done to protect your company and your employees:

1. A work from home policy that sets out requirements to be observed by employees while they are working from home. This would include instructions on how to set up their workplace so that it is ergonomically correct and a direction to keep their external doors locked while working from home and to notify their employer promptly of any injuries.
2. Insurances. A variety of insurances are required to accommodate workers in this age of work flexibility. This may include general property insurance which will cover company property up to a certain value and public liability insurance to cover customers who may be injured at your employee’s home as a result of any business activities. Employees should also be asked to check how their own home and contents policies would respond to damage to their home or property and if they are required to drive for work, that they be asked to confirm details of their motor vehicle insurance policies.
3. A “work from home” safety checklist. Your employees should inspect their home and complete this checklist before they commence their arrangement.
4. Regular communication. It is also important to note the risk of psychological injuries in any workplace. It is advisable for employers to check in with their employees from time to time to ask how they are going working from home. This will give the employee a chance to raise any issues, such as lack of support, equipment, communication issues with colleagues or management.

Amber Chandler is a Sydney-based partner practising in employment law at Barker Henley. She regularly advises employers in regard to HR issues and appears before the Fair Work Commission, the Federal Circuit Court and state employment tribunals.